In re Yung-Cheng Tsai

Decision Date07 May 2015
Docket NumberNos. 88770–5,89992–4.,s. 88770–5
Citation351 P.3d 138,183 Wash.2d 91
CourtWashington Supreme Court
PartiesIn the Matter of the Personal Restraint of YUNG–CHENG TSAI, Petitioner. In the Matter of the Personal Restraint of Muhammadou Jagana, Petitioner.

Eric J. Nielsen, Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.

Sarah A. Dunne, Attorney at Law, Nancy Lynn Talner, Attorney at Law, Shawn J. Larsen–Bright, Dorsey Whitney LLP, Seattle, WA, amicus counsel for American Civil Liberties Union of Washington.

Ann E. Benson, WA Defenders Assoc., Travis Stearns, Washington Appellate Project, Seattle, WA, amicus counsel for Washington Defender Association.

John Avrom Strait, Seattle University School of Law, Seattle, WA, Christopher N. Lasch, University of Denver Sturm College, Denver, CO, amicus counsel for Law Professors.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Matthew Hyrum Adams, Chris Stanislowski, NW Immigrants Rights Project, Seattle, WA, amicus counsel for Northwest Immigrant Rights Project.

Opinion

YU, J.

¶ 1 As applied to Washington, the holding in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) is an affirmation of an old rule of state constitutional law—the duty to provide effective assistance of counsel includes the duty to reasonably research and apply relevant statutes. However, language in certain Washington appellate cases made it appear that this well-established rule did not apply to RCW 10.40.200. In superseding those cases, Padilla significantly changed state law.

¶ 2 Muhammadou Jagana raises a claim that would have been rejected before Padilla based on those superseded appellate cases. We therefore reverse the Court of Appeals' order dismissing Jagana's personal restraint petition (PRP) and remand to the trial court for an evidentiary hearing. However, Yung–Cheng Tsai's claim was available before Padilla, and Tsai did in fact raise his claim with the assistance of an attorney in 2008. That motion was denied based on an issue of law not affected by Padilla, and Tsai did not appeal. We therefore affirm the Court of Appeals' order dismissing Tsai's PRP.

FACTUAL AND PROCEDURAL HISTORY
A. Yung–Cheng Tsai

¶ 3 On July 27, 2006, Tsai pleaded guilty to one count of unlawful possession of a controlled substance with intent to deliver (marijuana). On August 29, 2006, the trial court sentenced him to 11 months in jail and 12 months of community custody. Tsai did not appeal. On or about October 30, 2007, Tsai received a notice to appear from the United States Immigration and Naturalization Services, which informed him that he was subject to removal (also known as deportation) based on his conviction.

¶ 4 On July 21, 2008, Tsai filed a motion to withdraw his guilty plea under CrR 7.8, alleging that his attorney wrongfully advised him he would not be deportable if he accepted the State's plea offer and that this erroneous advice was prejudicial. The trial court denied Tsai's motion as time barred. The motion was filed over one year after Tsai pleaded guilty, and the trial court held that equitable tolling did not apply. The trial court did not transfer Tsai's motion to the Court of Appeals for consideration as a PRP. Tsai did not appeal or otherwise pursue his 2008 motion.

¶ 5 On May 18, 2011, Tsai again moved to withdraw his guilty plea under CrR 7.8 based on his attorney's alleged erroneous advice. Tsai argued his motion was exempt from the one-year time bar in RCW 10.73.090(1) under RCW 10.73.100(6) because Padilla and State v. Sandoval, 171 Wash.2d 163, 249 P.3d 1015 (2011) (applying Padilla ) effected a significant, material change in the law that applies retroactively.

¶ 6 The trial court initially denied Tsai's 2011 motion, holding it was time barred. On Tsai's motion, the trial court vacated its holding and transferred the motion to the Court of Appeals to be considered as a PRP. The Court of Appeals denied Tsai's PRP as time barred, holding that Padilla and Sandovaldo not apply retroactively. We granted Tsai's motion for discretionary review and consolidated his case with Jagana's. In re Pers. Restraint of Yung–Cheng Tsai, 180 Wash.2d 1014, 327 P.3d 55 (2014).

B. Muhammadou Jagana

¶ 7 On June 7, 2006, Jagana pleaded guilty to one count of possession of a controlled substance (cocaine). He was sentenced to three months of electronic home monitoring. Jagana did not appeal.

¶ 8 On November 4, 2010, Jagana moved to withdraw his guilty plea under CrR 7.8. Relying on Padilla, Jagana asserted that his attorney failed to investigate Jagana's immigration status, did not advise him that his guilty plea could have immigration consequences, and did not advise him to speak with an immigration attorney. The trial court transferred Jagana's motion to the Court of Appeals to be considered as a PRP.

¶ 9 The Court of Appeals initially filed a published opinion holding Jagana's PRP was timely under RCW 10.73.100(6) and remanding the case to the trial court for a reference hearing. In re Pers. Restraint of Jagana, 170 Wash.App. 32, 282 P.3d 1153 (2012). The Court of Appeals reasoned that Padilla was a significant, material change in the law and that Padilla should apply retroactively because it was not a new rule; it merely applied the standard analysis for ineffective assistance of counsel to a new set of facts.

¶ 10 The State sought discretionary review, and we remanded to the Court of Appeals for reconsideration in light of Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013), which held Padilla did announce a new rule that does not apply retroactively to matters on collateral review. In re Pers. Restraint of Jagana, 177 Wash.2d 1027, 309 P.3d 1186 (2013). On reconsideration, the Court of Appeals withdrew its opinion and dismissed Jagana's PRP as time barred. We granted Jagana's motion for discretionary review and consolidated his case with Tsai's. In re Pers. Restraint of Jagana, 180 Wash.2d 1014, 327 P.3d 55 (2014).

ISSUES

¶ 11 A. Are the PRPs exempt from the one-year time bar in RCW 10.73.090(1) under RCW 10.73.100(6) ?

¶ 12 B. If the PRPs are not time barred, are the petitioners entitled to relief or evidentiary hearings on the merits of their claims?

ANALYSIS
A. As applied to Washington, Padilla did not announce a new rule, but it did effect a significant change in the law under RCW 10.73.100(6)
1. The unreasonable failure to give any advice about the immigration consequences of a guilty plea was already deficient performance in Washington under the ordinary Strickland test

¶ 13 A criminal defendant's right to the assistance of counsel derives from the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. Under these provisions, a criminal defense attorney has the constitutional duty to provide assistance that is effective. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where a defense attorney makes “errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment,” the attorney's performance is constitutionally deficient. Id. at 687, 104 S.Ct. 2052. Where that deficiency deprives the defendant of fair proceedings, the defendant has suffered prejudice because there is “a breakdown in the adversary process that renders the result unreliable.” Id. Unreliable results caused by defense counsel's prejudicially deficient performance are constitutionally intolerable.

¶ 14 When determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. While simple to state in theory, this test can be complicated to apply in practice. The court must engage in a fact-specific inquiry into the reasonableness of an attorney's actions, measured against the applicable prevailing professional norms in place at the time. Id. at 690, 104 S.Ct. 2052. It is thus impossible to “exhaustively define the obligations of counsel [ ]or form a checklist for judicial evaluation of attorney performance.” Id. at 688, 104 S.Ct. 2052. Nevertheless, effective representation “entails certain basic duties,” such as

a duty of loyalty, a duty to avoid conflicts of interest[,] ... the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

Id.

¶ 15 It is against this backdrop that we consider whether Padilla applies retroactively under RCW 10.73.100(6) and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Under Teague, new constitutional rules of criminal procedure usually apply only to matters on direct review, but old rules apply to matters on both direct and collateral review. Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Because it is impossible to exhaustively define a defense attorney's obligations under Strickland, cases that merely apply the ordinary test for ineffective assistance of counsel to new facts do not announce new rules for Teague purposes. Chaidez, 133 S.Ct. at 1107 (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052 ). As applied to Washington law, Padilla is just such a case.

¶ 16 In Chaidez, the Supreme Court held that Padilla did not merely apply the ordinary test for ineffective assistance of counsel; it first considered the threshold question of whether defense counsel has any constitutional duty to advise...

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